channel 19

Todd Dills

No-ELD violations in the ‘soft enforcement’ period — 395.8(a) not the only incorrect infraction being issued

| March 19, 2018

If you missed this month’s E-Log Shift series installment in the magazine — it ran last month here at the website — you can find it at this link. It detailed the experience of Epling Transportation-leased owner-operator Robert Whittington with a violation of the ELD mandate he was issued that was incorrect in a couple different ways.

  1. It should never have been issued at all, given his truck’s powered by a 1995 Detroit engine and thus exempt from the mandate.
  2. The violation was encoded as a violation of 395.8(a), the equivalent of having no logbook at all, though his paper log was in order.

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Come April 1, law enforcement officials will in fact be utilizing that violation code, which comes with a 5 (out of 10) severity weight in the Hours of Service Compliance BASIC in the CSA Safety Measurement System, when issuing a no-ELD-in-use violation. If it comes with an associated out-of-service order, an extra two points will be added to the severity weighting, meaning it will have a greater impact on carrier measures/scores in that SMS category. (Reminding us all why CSA scores are not public information today, regular readers will recall that the single erroneously recorded 395.8(a) violation caused three-truck Epling Transportation’s hours score to jump from 0 to 50 in one fell swoop, before being removed. Follow this link to find James Jaillet’s story on FMCSA’s vision for how ELD out of service orders will proceed — essentially, after 10 hours down as with other OOS orders, if not outfitted on the spot with an ELD the driver will then move down the road to his/her destination, then be expected to use an ELD thereafter. It remains to be seen how this will all play out in the field.)

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FMCSA’s “soft enforcement’ request was for inspectors around the country to code no-ELD-in-use violations under 395.22(a) in order that the agency might keep those violations out of the scoring metrics within the CSA program. As we showed in the recent E-Log Shift report regarding an uptick in 395.8(a) violations nationally, there also was an uptick in violations encoded under one of the 395.15 codes, which have to do with Automatic Onboard Recording Device equipment.

There’s also evidence that some inspectors are incorrectly encoding no-ELD violations under one of those codes as well, which likewise contribute to CSA SMS metrics — though all but three are of a much lower severity weighting than the “no log book” 395.8(a) violation’s 5 weight. Here are the three that do carry a 5 weight: 395.15(a)(2) (driver not using the AOBRD installed/required by the carrier), 395.15(b) (information requirements for the onboard recording device not met), and 395.15(f) (driver failing to reconstruct/obtain log info in event of device failure). While there well could be plenty violations among the last of these in particular, given all the persnickety e-log-equipment issues we’ve been hearing about (stay tuned for further reporting on them) as well as the first (if drivers hadn’t gotten up to speed on AOBRD equipment their carriers put in without adequate training on ELD-Day One), there were very few ahead of December 18 under any of the 395.15 violation codes. As with 395.8(a) violations, recorded AOBRD-related-violation numbers shot up on December 18 and have continued somewhat elevated thereafter.

Follow this link for more explication of the data presented. Violations of 395.8(a) or any 395.15…. violation written prior to April 1 for not having an ELD in place like as not can be successfully challenged via FMCSA’s DataQs process and removed from carrier records.

Travis Baskin, head of regulatory affairs for the KeepTruckin ELD provider, tells of a customer’s no-ELD-in-use violation that was coded under 395.15 early on in the mandate enforcement period post-December 18. (You may recall Baskin argued for further extension of the soft-enforcement period to June.)

His central message: DataQs alone may not be enough to get such improper coding resolved for carriers of all shapes and sizes.

He helped his customer file a DataQs challenge, but the local jurisdiction changed the violation coded not to 395.22(a) but to 395.8(a). “Then when I contacted the responding officer and the investigator,” says Baskin, “I was told that is how they’ve been doing it and their FMCSA trainer confirmed this was the proper procedure and code for no-device-installed violations.”

He then got in touch, ultimately, with the lead CVSA contact within the state’s department, who ultimately caused the issue to be resolved.

“It really illustrates how deep the problem runs,” Baskin says. “I keep thinking of how many owner-operators probably went through exactly what I did and maybe didn’t persist after being told by law enforcement they were wrong.”

Ultimately, if you’ve been marked with a violation of the ELD mandate because you didn’t have an ELD installed in the truck, and that violation shows up as anything other than 395.22(a), be persistent in your DataQs challenges. At this link, find a list of those lead agency contacts who will be most attuned to enforcement policy/procedure.

Use DataQs to contest 395.8(a) violations written for not having an ELD prior to April 1

If you incurred a 395.8(a) prior to April 1 simply for not having an ELD record and you were keeping paper logs, challenge it through ...

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